Libertarianism

Much has been written about the so-called First Rule of Law Enforcement, “go home alive.” But this line by ExCop-LawStudent gets it exactly right:

I believe in the First Rule of Law Enforcement, but I also believe that our citizens have that same right to go home at the end of their day.

That is in agreement with the classical liberal concept of human rights: Your rights are limited only by the fact that everyone else is entitled to exactly the same rights. If someone infringes your rights (or someone else’s), then they are exceeding their rights, and you can act to stop them. But if you act against someone who is not infringing on someone else’s rights, then you are the one violating rights.

Over at Defending Dandelions, “nidefatt” isn’t happy with libertarians like myself and Scott Greenfield. (I don’t think Scott’s ever identified himself as a libertarian, but he sometimes sounds like one.) In an earlier post, he commented on Scott’s constitution-is-not-a-suicide-pact post, and more recently he responded to my own response to Scott’s post:

[…] The ideas are similar. Windy is no Greenfield, and steps back from his rhetoric and invective. But like Greenfield, he is of the opinion that the Constitution and the Bill of Rights mean what he thinks they mean. Civil Rights are right there, in black and white, and are meant to be applied as he has come to understand them.

Well, I certainly want the Constitution and the Bill of Rights to mean what they seem to mean to me. I place a pretty high value on individual liberty, and the Bill of Rights is written in a strong declarative tone. I like the sound of it. And I’d like to have very strong versions of all those rights it talks about.

Nevertheless, I normally try to avoid anything resembling Constitutional interpretation in my blog posts because I realize there’s an awful lot of history bound up in the interpretation of that document, and I’m far from a Constitutional scholar. In this case, however, it was hard not to mention the Constitution since I wanted to discuss why I thought the argument behind “the Constitution is not a suicide pact” is wrong.

The Constitution is a remarkable document, and like other remarkable documents, it apparently supports everyone. What Greenfield and Windy see as being the intention of the “founders” or perhaps, if they’re thinking more accurately, the populations of the colonies/states that ratified the document, is but one view. Their view of the Constitution is one of the more attractive because it requires little thought, there simply are forbidden things and that is that. The government can go this far and no further. Keeping the government on its side of the line is one of our eternal duties.

It’s worse than he thinks. The hard-core libertarian view is not merely that the government is forbidden from doing certain things, but rather that the government has no lawful authority to do anything that it is not explicitly authorized to do by the constitution.

For example, some would-be censors have argued that the founders could not have envisioned such a powerful propaganda tool as television when they wrote the Bill of Rights, and surely if they had known about television, they would not given it the broad protection that the printing press receives in the First Amendment.

The libertarian response is that the Constitution describes a limited government, and since the authors could not have envisioned television, they could not possibly have intended to give the federal government power over television. Many libertarians would like to see the federal government limited only to a very narrowly defined set of enumerated powers.

I grow tired of this view. I see it everywhere, and it is as intellectually dishonest as it is hypocritical. Of course the Constitution isn’t eternal.

[…]

What Greenfield and Windy and their ilk trumpet so blindly as the meaning of the First Amendment was a concept shaped largely by men in the beginning of the twentieth century, men like Holmes and Hand and other men who had more sense than just about anyone alive today as far as I can tell.

We are sovereign. Not the Constitution. We are. The Constitution has been and will always be the plaything of the powerful. If the best argument you can come up with is “well the Constitution said so” or “the founders thought so” then you will lose the war of ideas.

“The Constitution said so” is hardly my best argument.

More ironically, you will have attempted to thwart authoritarians by relying on authority, pure and simple. If your ideals have as much value as you credit them with having, then take the time to learn about that value and how to express it. Otherwise, your simple, mindless repetition of this that or the other amendment and your waving of the shriveled ancient parchment you so love will not save you from the horde of children growing up today who think that document foolish and dated.

It has not escaped my attention that the Constitution is not a libertarian document. (Tolerance for slavery was the first clue.) Although it was influenced by some libertarian ideas, it does not purport to create a libertarian government that maximizes individual liberty. And if it were up to me, I would forbid the government from doing many things, regardless of whether or not the Constitution would permit them. My view of what the government should or should not be doing does not depend on the Constitution or its interpretation by any court.

But where the language of the Constitution does comport with my own preferences for government, I have a tendency to invoke it for support. Consequently, the fact that “nidefatt” thinks I was making a largely Constitutional argument is probably due to a lack of clear writing on my part.

To my mind, the main thrust of my post was to undermine Justice Jackson’s argument that sometimes liberty must be sacrificed to preserve order:

The Constitution is not a suicide pact because respecting individual civil liberties is not a suicidal act. How many countries have died because they allowed their citizens to have too much due process? How many nations have fallen because they allowed their citizens to speak up too much?

Granted, there are governments that arguably fell because of a failure to crack down hard enough on their people. Off the top of my head, there’s tsarist Russia, communist Czechoslovakia, apartheid South Africa, and the Arab Spring nations — Tunisia, Egypt, Libya, and Yemen. Corrupt authoritarian regimes, every one. In some cases, the new governments that arose afterwards weren’t any better, but the destruction of the old governments was no great loss.

Shortly after 9/11, Attorney General John Ashcroft lashed out at people who objected to the Patriot Act and other expansions of the security state by accusing them of alarming people with “phantoms of lost liberty.” To my mind, Justice Jackson was alarming people with phantoms of anarchy and chaos. Free speech has never destroyed a country worth saving.

More to the point (although one I did not make explicitly) Jackson was on the losing side of the decision. The Supreme Court had rejected his views, and in the ensuing decades the United States adopted exactly the kind of broad interpretation of free speech that Jackson was worried about. And yet rabble rousers did not stir the populace to revolution or civil war. Jackson’s moral panic over agitators was proven wrong by history.

The worst it ever got was about a decade later, when African-American civil rights leaders (among others) stirred up protests that occasionally erupted into violence — often as much by the police as by the protesters — and even then American civilization was never in danger. And note how the civil rights movement ended: The rest of America realized that the civil rights leaders — the people making exactly the kind of disruptive speeches Jackson wanted to silence — had been right all along, and many of their ideas became the dominant ethos of our society.

And sixty-some years after Jackson’s dissent, we are the most powerful and influential nation in the world. There are many reasons for that, but I argued that our embrace of liberty, though tenuous at times, was no small part of the cause:

Not only is respecting individual civil liberties not a suicidal act, it’s arguably a source of considerable strength. A tradition of freedom makes a nation difficult to conquer, the economic benefits of free markets make strong defense affordable, and the practice of open debate makes a nation flexible to advantageous changes of policy.

That’s a big part of my argument right there. Freedom on the broadest possible terms is a good policy that makes our nation strong and improves all our lives.

But freedom is also valuable in itself. From time to time, I call myself a libertarian, and I mean it in the sense that Nick Gillespie and Matt Welch define it in Declaration of Independents:

At it’s root, libertarianism is about a default preference for the freedom to peaceably pursue happiness as we define it without interference from government. It’s the belief that the burden of proof should rest not on the individual who wants to sell lemonade, paint his or her house purple, hop on an airplane, ingest intoxicants, or marry someone from the same sex (though preferably not in that order) but on any government seeking to thwart or control such victimless activities. Like the magazine we write for, we agitate for the aspirational goal of “free minds and free markets,” celebrating a world of expanding choice — in lifestyles, identities, goods, work arrangements, and more — and exploring the institutions, policies, and attitudes necessary for maximizing their proliferation. We are happy warriors against busybodies, elites, and gatekeepers who insist on dictating how other people should live their lives. Like John Stuart Mill, we’re big on “experiments in living.” Within the broadest possible parameters, we believe that you should be able to think what you want, live where you want, trade for what you want, eat what you want, smoke what you want, and wed whom you want. You should also be willing to shoulder the responsibilities entailed by your actions. Those general guidelines don’t explain everything, and they certainly don’t mean that there aren’t hard choices to make, but as basic principles, they go a hell of a long way to creating a world that is tolerant, free, prosperous, vibrant, and interesting.

That’s what I want more than anything, for all of us to live in that kind of world, and I hope it’s what you want too. Creating that world is mostly up to us, but in order to succeed, we have to have a government that is compatible with that vision. At the risk of quoting from another “shriveled ancient parchment” I think Jefferson nails it pretty well in the original Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…

In other words, freedom is not suicidal to a nation. Freedom is the whole point of having nations. The only reason for permitting governments of any kind is to help us create a world that is “tolerant, free, prosperous, vibrant, and interesting.”

Chris suggests that these people (supposedly 29 percent of Americans) would be too busy getting ready to avoid or run from such a rebellion if they really believed it was coming soon. And I see his point. There are, after all, currently more than a million refugees fleeing Syria’s rebellion.

I’m certainly not in that 29 percent who thinks we will need (or be in) an armed rebellion any time soon (or, indeed, in my lifetime), but I would be one who would take up arms if needed rather than try to hide from the rebellion. Maybe that’s just my age talking. Rebellions tend to involve the young and the old. Those in the middle often have too much to lose.

Hmm, I guess that makes me quite selfish. I’d be pushing the rebellion along, dragging the young with me, who don’t realize the value of their own lives, while putting everyone else who doesn’t want to be involved in mortal danger. All for my high-minded ideals.

And if we win, the surviving young would build statues to assholes like me.

Yeah, that sounds nice. Just be sure to get my beard right.

Seriously, though, that’s my point. I’ve always supported the Second Amendment on the principle that, someday, citizens may need it to defend themselves from the government. I don’t own a gun, nor do I want to own a gun. In case you didn’t know, those things are dangerous!

Still, if the situation arose where I thought we needed to rebel against our government, that danger is a useful trait.

Yet in every rebellion I’ve ever studied, the vast majority of the population just wants to get away, or simply survive. It’s a small minority of the people actually fighting on either side of such a conflict. Most are just like Chris Hallquist, simply looking for a way to lay low until the conflict blows over one way or another.

Studying the American Revolution has made me realize how few people carried the population along towards war and how they used questionable morality and ethics to do so. Nelson Mandela, on the other hand, turned away from violent rebellion and successfully overthrew a well established and armed government using peaceful methods.

Is defending the Second Amendment just the selfish act of a minority of old assholes like me with grand notions of a just armed rebellion? Have I now lost so much of my libertarian ideals that I can’t even muster the strength to defend the Second Amendment anymore?

Come on. The readers on this site should be able to reason some sense back into me. Give it a shot. Or maybe I just need to dig out some of the Heinlein books I read too often as a kid. I just have to avoid picking up that copy of Forever War from the same box.

There’s no free lunch, goes the old saying. The IRS may take that literally.

The Internal Revenue Service is looking into the “free lunches” that companies like GoogleYahooFacebook , and other Silicon Valley heavyweights provide to their employees, and whether those meals should be subject to taxation.

“It appears for a lot of these companies that they’re not actually including (them) in their employees paychecks or W-2s and therefore the question is whether there’s some skirting of the tax laws,”

I think that illustrates the government mindset pretty well, which could perhaps be summarized as “Oh, you’ve got nice stuff! I’m going to take some.”

You see, what Stephen Colbert and other critics leave out is that libertarians always follow “I’ve got mine” with “and you’ve got yours.” Leaving that out makes libertarianism seem pretty selfish.

To be fair, Ayn Rand also criticized people for giving in to their altruistic impulse, as if helping the needy was some kind of weakness. Then again, even the staunchest Ayn Rand disciple wouldn’t have done this:

In 2006, the City of Las Vegas became locked in a bizarre war with homeless advocates, and decided that no one should be engaging in charity in the public parks. The City began ticketing good Samaritans who shared food with more than 24 people, under the belief that giving food to people already in the public park violated statutes requiring permits for gatherings of 25 or more people. When the ACLU of Nevada took issue with this interpretation of permit laws, the City took a more direct approach: it explicitly outlawed the sharing of food with anyone who looked poor…

Other homeless individuals were being kicked out of parks under a questionable trespass policy called “86”ing, where Park Marshals essentially took photographs of certain people – almost always homeless people – who were then kicked out of the public parks on pain of a trespass misdemeanor if they returned. The 86ing process had no paperwork, no right to appeal, and no due process whatsoever.

I’m not even sure how to summarize that mindset…maybe “How dare you help the poor yourself! You should be paying us to help them.”